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Monday, December 04, 2006

"Conscience" vs. National Defense - 1st LT Watada's Absurd Excuses

As you may know, Ehren Watada is the commissioned Army officer who has refused to deploy to Iraq as ordered, and now face court martial for missing movement and conduct unbecoming an officer. His defense against the charge of "Conduct Unbecoming an Officer" is based on going out on the anti-war speaking circuit and encouraging other soldiers to refuse to go.

Fortunately for the country, and UNfortunately for Watada and his ACLU enablers, the law is not on his side. This isn't the first time an activist and/or coward has offered this type of excuse. Adam Ake, a 3L here and a Major in the Army National Guard, has put together a very powerful outline explaining the state of the law in this case for the Military Law Association. With his permission, I've reproduced it in the comments section below. Well worth a read.

To this I can only add these thoughts. If a military member (and a junior one at that) is allowed to make his own judgments on the veracity or even legality of policy made by elected civilians, then those elected civilians no longer have control over the military. That conclusion portends only two outcomes - either the military establishment begins acting on its own and we have a coup, or the military is emasculated and could no longer be counted upon to defend American interests. Make no mistake - Watada's backers are too short sighted to fear the first outcome, while working hard to ensure the second.

19 comments:

[This first part was an addendum Adam sent me, more directly discussing his "illegal orders" meme. - Orrin]

The current law of war differentiates between Jus ad Bellum (macro level Justice of the war) and Jus in Bello (justice of individual actions taken in war). Junior soldiers, like Lt. Watada, are only held morally responsible (and criminally responsible, if they were to be tried as a war criminal) for the latter. Thus, he is correct that he has a moral obligation to disobey illegal orders in the second category (killing non-combatants, etc.). However, junior soldiers are never held responsible for the injustice of the war itself. See http://en.wikipedia.org/wiki/Jus_ad_bellum

In our country, where the principle of civilian control of the military is firmly established, there are arguably no uniformed soldiers that could be held responsible for the illegality of the war itself, were it to be determined to be so at some point (think here Donald Rumsfeld in front of some latter day Nuremburg Tribunal). At worst, only those military members, like the Chairman of the Joint Chiefs, that has a direct role in policy formation could be held liable for the injustice of the war itself. Because of the sharp distinction we draw between military and civilian control in this country, we effectively insulate any military member from facing such a charge.

Watada and his supporters are trying to conflate the two concepts, and imply that the duty to disobey an illegal order in the Jus in bello realm translates into a duty to disobey a war that is itself unjust. That's not his decision to make, and the Supreme Court has made that clear in the cases I collected.

[Here is the main piece Adam put together. Because of layout limitations, I've reproduced the case quotes in italics. He included Lexis links to the cases, which I've updated to a more public source if it was available. -Orrin]

Watada is charged only with missing movement and with conduct unbecoming. The first charge is relatively clear and he doesn’t have a constitutional argument against it. The conduct unbecoming charge is apparently related to statements he made in public calling on all soldiers ordered to Iraq to refuse to go. He is claiming that this charge is unconstitutional as applied to him as it potentially imposes a criminal penalty for exercising his First Amendment rights. His stance is rather obviously wrong to those of us who have worn the uniform, but here is the legal support for that gut instinct that you probably feel on the matter:

The critical case here is Parker v. Levy, 417 U.S. 733, 758-759 (U.S. 1974), which, like here, involved a commissioned officer who was urging soldiers (specifically African-Americans) to refuse orders to Vietnam on the grounds that the war was unjust. He was convicted for Conduct Unbecoming. Levy challenged the conviction on the grounds that Watada appears to – that the charge was unconstitutional as applied to him, as he was exercising his rights of free speech, and that this Article in the UCMJ was constitutionally overbroad as a result. The court rejected his argument in a 5-3 decision (J. Marshall took no part in the case).

The last line from this case extract is directly on point here.

While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U. S. C. M. A., at 570, 45 C. M. R., at 344:

"In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. Brandenburg v. Ohio, [395 U.S. 444 (1969)]. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray, [20 U. S. C. M. A. 63, 42 C. M. R. 255 (1970)]."

"'Speech that is protected in the civil population may . . . undermine the effectiveness of response to command.'" Parker v. Levy, supra, at 759, quoting United States v. Priest, 21 U. S. C. M. A. 564, 570, 45 C. M. R. 338, 344 (1972). Thus, while members of the military services are entitled to the protections of the First Amendment, "the different character of the military community and of the military mission requires a different application of those protections." Parker v. Levy, 417 U.S., at 758. The rights of military men must yield somewhat "'to meet certain overriding demands of discipline and duty. . . .'" Id., at 744, quoting Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion). n10 Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, 424 U.S., at 840; id., at 841 (BURGER, C. J., concurring); id., at 848 (POWELL, J., concurring).

Watada may claim that he is being railroaded in military courts, but there’s no way a civilian court would interfere on his behalf, either. The courts are commanded to show deference to Congress’ dedicated power to raise and regulate the military:Solorio v. United States, 483 U.S. 435, 447-448 (U.S. 1987)

Decisions of this Court after O'Callahan have also emphasized that Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military. As we recently reiterated, "'judicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.'" Goldman v. Weinberger, 475 U.S. 503, 508 (1986), quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Since O'Callahan, we have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated. See, e. g., Goldman v. Weinberger, supra, at 509-510 (free exercise of religion); Chappell v. Wallace, 462 U.S. 296, 300-305 (1983) (racial discrimination); Rostker v. Goldberg, supra, at 64-66, 70-71 (sex discrimination); Brown v. Glines, 444 U.S. 348, 357, 360 (1980) (free expression); Middendorf v. Henry, 425 U.S. 25, 43 (1976) (right to counsel in summary court-martial proceedings); Schlesinger v. Councilman, 420 U.S. 738, 753 (1975) (availability of injunctive relief from an impending court-martial); Parker v. Levy, 417 U.S. 733, 756 (1974) (due process rights and freedom of expression).

The operation of a healthy deference to legislative and executive judgments in the area of military affairs is evident in several recent decisions of this Court. In Parker v. Levy, 417 U.S. 733, 756, 758 (1974), the Court rejected both vagueness and overbreadth challenges to provisions of the Uniform Code of Military Justice, noting that "Congress is permitted to legislate both with greater breadth and with greater flexibility" when the statute governs military society, and that "[while] the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections." In Middendorf v. Henry, 425 U.S. 25 (1976), the Court noted that in considering due process claims in the context of a summary court-martial it "must give particular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. Const., Art. I, § 8," concerning what rights were available. Id., at 43. See also id., at 49-50 (POWELL, J., concurring). Deference to the judgment of other branches in the area of military affairs also played a major role in Greer v. Spock, 424 U.S. 828, 837-838 (1976), where the Court upheld a ban on political speeches by civilians on a military base, and Brown v. Glines, 444 U.S. 348 (1980), where the Court upheld regulations imposing a prior restraint on the right to petition of military personnel. See also Burns v. Wilson, 346 U.S. 137 (1953); United States v. MacIntosh, 283 U.S. 605, 622 (1931).

As another way of showing deference, the Court has ruled out any remedy at law for soldiers who claim that superior officers (or Congress) has violated their constitutional rights

The special status of the military has required, the Constitution has contemplated, Congress has created, and this Court has long recognized two systems of justice, to some extent parallel: one for civilians and one for military personnel. Burns v. Wilson, 346 U.S., at 140. The special nature of military life -- the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel -- would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command. Here, as in Feres, we must be "[concerned] with the disruption of '[the] peculiar and special relationship of the soldier to his superiors' that might result if the soldier were allowed to hale his superiors into court," Stencel Aero Engineering Corp. v. United States, 431 U.S., at 676 (MARSHALL, J., dissenting), quoting United States v. Brown, 348 U.S., at 112.

Also, Congress, the constitutionally authorized source of authority over the military system of justice, has not provided a damages remedy for claims by military personnel that constitutional rights have been violated by superior officers. Any action to provide a judicial response by way of such a remedy would be plainly inconsistent with Congress' authority in this field.

Taken together, the unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute "special factors" which dictate that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers. See Bush v. Lucas, post, p. 367.

That's the heart of it. If Watada is allowed to make the determination that the President (and the Congress who supported his actions) has overstepped his Constitutional authority, then a Major who thinks Congress doesn't have the authority to bar him from torturing people must also be excused. There's no conceptual difference, except for an outcome preference.

If calling for a military coup is "not rather obviously wrong" to you, then I submit that you should have paid more attention in your training. And I'm more than happy to know that any of these anonymous Generals who DO support such absurdity are now civilians, although your failure to name any of them is suspiciously conspicuous.

Please note that personal attacks coming on the heels of a comment this inane tell more about the author than the intended target.

Fascinating. One of the more pitiful attempts at a straw man I've seen in recent memory: "military coup"!

Watada is doing nothing more than refusing to participate in war crimes. In short, he's doing what the Army trained him to do.

Even AG Gonzales warned prophetically in a memo to the president, written on January 25, 2002 when he was still White House counsel, that the U.S. adoption of the Third Geneva Convention as a part of the U.S. criminal code in 1996 made any violation of said convention a "war crime..."

I don't know how they do it out there on the boats where all are safe from peril, but in Army Basic Officer Training, we spend a great deal of time covering the importance of the Geneva Conventions. Why is that do you think? Let me tell you since you don't know. It's because if an enemy insurgent knows he'll be treated well by US soldiers when he's captured, he is more likely to surrender.

Before Abu Ghraib and its fallout, countless insurgents surrendered because it was well known they would receive a hot meal, a pack of cigarettes and air-conditioning as a consequence.

The US Army's moral integrity used to be the most important weapon we had. It saved countless lives, encouraged cooperation with our allies and prevented Iraqis from joining the growing insurgency.

US reputation for moral integrity ended when false pretexts began.

Believe it or not, some of us out here still value integrity and won't follow a leader who has none.

When a military officer refuses to follow the legitimate orders of elected military leadership, given pursuant to his CinC Constitutional authority, and approved by Congress, that is a crime. When he attempts to encourage others to join him in his sedition (as Watada has done and is doing), he is calling for a coup. Sorry. That's just the reality of it. It's not a straw man, it's the heart of the danger he poses, and the reason he's going to sit in Kansas for an extended stay.

I sat in the front row of an auditorium and heard Watada say that because the electorate had failed to hold the politicians accountable, it was up to the soldiers to do so. If that's not a coup, what is? You may not like the leaders the people elect or agree with their decisions, but that doesn't give a soldier Constitutional or legal license to ignore them.

Do you seriously want to live in a country where the military is not under the absolute control of the elected military leadership?

The "illegal war" meme is demonstrably false, but even if it wasn't, see the discussion on Jus ad Bellum versus Jus in Bello above. Watada is not liable for the "crime" of making the decision to reengage militarily pursuant to the ceasefire agreement of 1991, and he is still obligated to follow the orders of the elected officials.

If Watada is correct, every person in uniform who obeys their deployment orders (including, apparently, yourself) should be in prison for war crimes. Even the Nuremburg trials recognized that regular soldiers following combat orders - even when those orders came from a criminal regime - didn't constitute war crimes in most cases.

Speaking of straw men, your mention of Abu Ghraib is irrelevant (although I don't deny the incredibly destructive impact that shameful episode had). Watada was not ordered to abuse prisoners, nor was anyone else. If he was, he would be correct to refuse that abuse order, but NOT his deployment orders.

Watada is free to speak out against the war. He is NOT free to refuse his deployment orders, nor is he free to encourage other soldiers to refuse to follow deployment orders.

Consider: You are deployed to Iraq. You order a soldier to clean the latrine (sanitation being a necessary part of supporting troops in the field). He refuses, because your order is in support of what he considers to be an illegal use of troops. By your Watada logic, you must respect your soldier's wishes. In fact, this attenuated logic could be used to refuse any order ever given. That's not the military I want to see or serve in.

If you are seriously sympathetic to officers who encourage their people to make their own decisions on which orders to follow, based on their own fantasy Constitutional theories not supported by Supreme Court decisions (listed above) or any other authority, then I urge you to resign your commission immediately. At the very least, you won't be liable for any more "war crimes" than you may have already committed.

I'm well acquainted with the necessity of the chain of command, following orders and the folly of unbridled free-thinking among troops.

However, if there is no legitimacy, these principles become invalid. It becomes the duty of the soldier to reject and challenge the unlawful orders. Understanding this is, in fact, part an Army Officer's commissioning.

The Downing Street Memo is one piece in a myriad of smoking guns that makes direct reference to classified "United States" policy during the timeframe leading to the invasion. The memo states that, "Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy." No official source has questioned the veracity of the memo.

You should know this better than most: where there is no legitimacy, it is an officer's duty to reject and challenge an unlawful order; no matter who gives it.

Let me be clear: "Legitimacy" isn't your decision to make, nor is it Watada's. It's the political branches of government, held accountable by the electorate, and to a lesser extent, the judiciary. Both Congress and the Executive, spanning two administrations and both parties, have maintained that invasion was a legitimate option pursuant to the cease fire Saddam signed, as well as various UN resolutions, and have acted on that to varying degrees.

It's like this: I am convinced that many federal criminal statutes are unconstitutional, because their use of the Commerce Clause goes beyond what is permitted. But that's not the judgment of Congress, the President, or of the Supreme Court. I am free to speak out against such laws, and urge their repeal, but I will still go to jail if I violate them - and I should. I would rather the political branches adhere to my understanding of the Constitution, but their differing view is more legitimate because it is supported by the power confered upon them by the voters. The alternative is anarchy.

You and Watada are free to disagree with the Congress and the President's assessments, but neither of you were elected or vested with the power to enforce your decisions. You've clearly had too much Kool-Aid to drink to convince you the war was indeed legal, but even if it isn't, Watada still must follow his deployment orders. And as an officer, he must not use his authority to urge fellow soldiers to not fulfil their orders, which is exactly what he's doing.

If the entire endeavor lacks legitimacy, and that determination can be made by individual soldiers, then no soldier in Iraq could legally be made to follow ANY order there - and the ones that do are war criminals. That's your position. That's Watada's position. It is a ridiculous, childish, irresponsible, illegal, wrong-headed, short-sighted, and dangerous position, for the reasons presented above. Fortunately, it is a tiny, tiny minority position, even among the very few liberal military officers who are out there.

LOL! Of course, there are so few "liberal" military officers that the Bush administration had to bring a retired 4 star (Schoomaker)out of retirement because they couldn't get another active duty 3 or 4 star to wage a war based on fabricated intelligence. This incident alone speaks volumes about the integrity of the officer corps and its disgust for Bush, et al. Lay off the crack pipe, check the facts, then come back to reality for a few minutes.

If my opinion is in the minority, why do over 87% of the American public want Bush impeached based on the deceptions leading to war?

http://www.msnbc.msn.com/id/10562904/

It must be because they're all leftists.

Legitimacy is an officer's decision to make. The President commissions and empowers military officers to make such difficult decisions. After all, the "political branches of government" aren't the ones walking point on a combat patrol in Baghdad (nor are any of their children).

The conditions, constituting a just war-decision(jus ad bellum), are:

1. Competent authority: War must be waged under the public authority;

2. Just cause: War must waged either in legitimate self-defense or to correct and punish grievous injuries; and

3. Right intention: War must only be pursued in order to achieve the ends of the just cause, without hatred or desire of vengeance, and in order to establish a just and lasting peace.

In this war we have:

1. Incompetent authority.2. Fabricated cause.3. The purpose is to destabilize the region and open markets without regard to justice or lasting peace.

But I sort of respect you psychos. You try to remain loyal to the cause and I can appreciate that. It's too bad y'all are too terrified to ever actually set foot inside Iraq.

Saying that members of the military can lawfully refuse to deploy merely by finding, in their own mind, that the executive branch is incompetent or that the war is "unjust," or that even if it is "just" it is poorly tailored towards "just" ends, is tantamount to saying that they only have to follow the order they feel like following.

When someone tells Watada to shoot a civilian, I'll listen...until then, I am pleased to see him branded a criminal.

Sigh. You still aren't addressing the facts or the law. Blather all you want about the "illegality of war," the "disgust" the officer corps supposedly has for Bush, etc. You can read MSNBC polls that say far more about that pathetic network's audience than national opinion, and erroneously base your conclusions on that. You can even, when logic fails you, resort to the "Chicken Hawk" meme, and step up your ridiculousness with a clear lack of understanding of what I actually did in the Navy. Fine. Like your silly personal jabs, all of these things say far more about you than they do about me or the arguments presented here. (At least I understand why you post anonymously - I wouldn't want to be associated with such poor critical thinking skills, either.)

Put those aside. Assume I agree with all of your "facts."

Here's the point, for the last time. Address it, or move on to some other site that doesn't bother with "facts," "the law," "logic," or other inconveniences. Even if you're 100% right about the legality or legitimacy of the war, Watada is still legally wrong, and should be in jail.

Let me attempt to re-focus you: If you are still on active duty, why? Why are you not also a war criminal? Why should any soldier, assuming the Iraq endeavor is illegal, have to follow ANY order which in any way supports it? Because our laws are clear that illegal actions by the civilian leadership do not make war criminals of LTs, what do his actions have to do with his legal liability? And what would be the broader result if we adopted your concept of what choices soldiers have or don't have - should generals be allowed to overthrow the elected government if in their judgement the pols are acting illegally? If a Major thought it was immoral to NOT torture someone if he could get information that would save his soldiers from more IED blasts, should we excuse him? What about a General who thought that "incompetence" was the failure to prosecute the war MORE violently, and began expanding it into Iran and Syria on his own initiative because he honestly believed national security depended on it?

Based on your previous posts, I don't expect a coherent, logical, or narrowly on-point response. Last chance to redeem yourself...

Remember, this discussion began when a National Guardsmen-gone-law-hack committed a logical error. He made the mistaken assumption that because the parts of a whole (Federalist Guardsmen) have a certain belief, that the remainder of the whole must ("His stance is rather obviously wrong to those of us who have worn the uniform") have that belief. (Aristotle, Nicomachean Ethics, Composition Fallacy) Clearly, I and numerous others have "worn the uniform" and find that Watada's stance is NOT “rather obviously wrong.” You posted this flaw and are a co-signatory to its failed logic.

So, you see, your logic is deeply flawed, not mine. As for facts, I covered the facts in my last post so let's not go back to that. That leaves "the law"; whatever that means.

I don't know your source of commissioning but in the Army, we receive thorough training in the Law of Land Warfare. Perhaps because you were Navy, you did not receive Land Warfare training. However, this does not excuse you from acknowledging the relevant sources.

If you wake up and come back to reality for a moment, you will find that "members of the armed forces are bound to obey only lawful orders" and that "The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime.” (FM 27-10)

Additionally, Richard Swain, a retired officer who teaches officer ethics at the U.S. Military Academy at West Point, testified at Fort Lewis on Tuesday. Swain acknowledged, under oath, that “officers are under no obligation to follow an order they deem illegal.” That’s any order from any source, whether it is civilian or military.

This is military “law.” Deal with it.

Airborne Ranger

Oh yea,I didn't forget about you P-Rex: PubliusRex said...

"When someone tells Watada to shoot a civilian, I'll listen...until then, I am pleased to see him branded a criminal."

Fair enough. Soldiers and Marines ARE being told to shoot civilians; EVERYDAY! These are just a few of the DOCUMENTED accounts. Did you think war was floating around in a boat or sub counting the hours until the next liberty?

23 March : Five Syrian nationals were killed and a further ten were hurt when a US missile hit a bus in Rutba, western Iraq, as it was returning to Syria. A US military spokesman admitted that a US missile had hit the bus and said that the real target was a bridge. It is unclear why the bridge was attacked and why it could not have been attacked at a time when there was less likely to be civilian traffic.

25 March : At least 14 civilians died and another 30 were injured in Baghdad on March 25 when a shopping area was hit during an air raid. According to BBC reporter Andrew Gilligan, two missiles hit a busy shopping area, several hundred meters from any military buildings. ("'Many dead after Baghdad shops hit" BBC News, 26 March 2003)

28 March : At least 55 civilians died when the market in the Shula district of Baghdad was hit. MATW doctor Geert Van Moorter was at a nearby hospital a few hours after the incident. He reported: "The hospital was a scene from hell. Complete chaos. Blood was everywhere. Patients were shouting and screaming. Doctors heroically trying to save their patients. In that one small, 200-bed hospital they counted 55 dead, 15 of them children. The pictures I made are too horrifying to send." He added that the market is located in one of the poorest neighborhoods of Baghdad and that there are no military targets, not even big buildings, within several kilometers."Both the US and UK governments publicly suggested that the explosion was "probably" caused by an ageing Iraqi anti-aircraft missile. However, according to the Independent newspaper, the remains of a serial number of a missile were found at the scene, identifying it as one manufactured in Texas, the USA, by Raytheon, the world's biggest producer of "smart armaments", and sold to the US Navy. The missile is believed to have been either a HARM (High Speed Anti-Radiation Missile) device, or a Paveway laserguided bomb. Although the US authorities acknowledged that one of their jets fired at least one missile in the area that day, an official US source claimed that the shrapnel could have been planted at the scene by Iraqi officials. (Robert Fisk "In Baghdad, blood and bandages for the innocent" The Independent, 30 March 2003; Cahal Milmo "The proof: marketplace deaths were caused by a US missile" The Independent, 2 April 2003)However this kind of "explanations" are in accordance with a study of a document made in 92 by US colonel Henderson. He explained how the US army should deal with "bad news": 1. trying to restrain access. 2. Exposing that "different hypothesis should be presented" and that "investigation would be conducted, delaying the impact of the "bad news" on the public. Adverse forces are often accused by US militaries for their own breachs of international law.

March 30 : Mark Franchetti, a journalist for The Times, reported about the recent battles for the bridges around Nasiriya. He witnessed that the American marines were given orders "to shoot at any vehicle that drove towards American positions." Franchetti described how during the night "we listened a dozen times as the machine guns opened fire, cutting through cars and trucks like paper." The following day he found the wreckage of some 15 vehicles and counted 12 dead civilians who had been trying to leave Nasiriya overnight. (Mark Franchetti "US Marines Turn Fire on Civilians at the Bridge of Death" The Times, 30 March 2003)

31 March : A US Apache helicopter reportedly fired on and destroyed a pickuptruck in the region of al-Haidariya near al-Hilla. The sole survivor, Razeq al-Kadhem al-Khafaji, told an AFP journalist how 15 members of his family were killed in the attack. He said the family was fleeing fierce fighting in al-Nasiriya, further south, when their truck was blown up. Sitting among the 15 coffins at the local hospital, he said he had lost his wife, six children, his father, his mother, his three brothers and their wives. The circumstances of the attack have not been clarified to AI's knowledge.

31 March : Soldiers with the US Army's 3rd Infantry Division killed seven women and children when they opened fire on an unidentified four-wheel drive vehicle as it approached a US checkpoint near al-Najaf. According to a Pentagon spokesman, initial reports indicated that "the soldiers responded in accordance with the rules of engagement to protect themselves". However, this does not appear to be consistent with the version reported in the Washington Post, which indicated that the officer in command at the scene believed at the time that no warning shots were fired. It asserts that the officer roared at the platoon leader, "You just [expletive] killed a family because you didn't fire a warning shot soon enough!"This version belies the official explanation that the soldiers acted in accordance with the rules of engagement as apparently no warning shots were fired. (William Branigin "A Gruesome Scene on Highway 9: 10 Dead After Vehicle Shelled at Checkpoint" Washington Post, 1 April 2003)

1 April : In the morning, Hilla, a small town south of Baghdad, was hit by air raids. According to eyewitness accounts recorded by MATW doctors Colette Moulaert and Geert Van Moorter, some 20 to 25 bombs were dropped on poor, residential neighborhoods. In the next half an hour, the hospital of Hilla received 150 seriously injured patients. According to one of the hospital's doctors, Dr. Mahmoud Al-Mukhtar, the wounds were probably caused by cluster bombs. The use of cluster bombs in Hilla was also confirmed by the international media.20 The AFP counted at least 73 civilian deaths in Hilla over several days and their correspondent reported that at the scene of the bombing dozens of parts of cluster bombs were peppered over a large area. ("Bombings kill 48 more civilians south of Baghdad" AFP, 2 April 2003)

3 April : Roland Huguenin the spokesperson of the International Committee of the Red Cross (ICRC) in Baghdad, said they saw "incredible" levels of civilian casualties south of Baghdad including "a truckload" of dismembered women and children. ("Red Cross horrified by number of dead civilians" CTV, 3 April 2003)

6 April : Ali Ismaeel Abbas, 12, was asleep when a missile obliterated his home and most of his family, leaving him orphaned, badly burned and without arms, according to a Reuters report. The boy's father, pregnant mother, brother, aunt, three cousins and three other relatives were killed in night-time missile strikes on their house in Diala Bridge district east of Baghdad.

6 - 7 April : Laurent Van der Stockt, a Belgian photographer who followed the advancing Third Marine Battalion, testified in the French newspaper Le Monde that American snipers were ordered to kill anything coming in their direction when they were attacking a bridge in the outskirts of Baghdad on April 6 and 7. "With my own eyes I saw about fifteen civilians killed in two days," he says, "I've gone through enough wars to know that it's always dirty, that civilians are always the first victims. But the way it was happening here, it was insane." "J'ai vu directement une quinzaine de civils tués en deux jours. Je connais assez la guerre pour savoir qu'elle est toujours sale, que les civils sont les premières victimes. Mais comme ça, c'est absurde."( Michel Guerrin "J'ai vu des marines américains tuer des civils" Le Monde, April 13, 2003)

8 April : Arab News war correspondent Essam Al-Ghalib writes :"This is no longer a war against Saddam and his regime, if it ever was. It has become a war against the Iraqi people," In Sanawa, witnesses told him how American troops were firing at suspected Iraqi positions, some located in residential areas: "One Iraqi soldier will enter a neighborhood and fire a few shots at the fighter plane, and they will respond with a barrage of shots killing as many as 50 civilians in the effort to get him." In the city of Hamza, the Baath Party center was bombed from the air. Twenty-two corpses had already been been removed. (Essam Al-Ghalib "Mounting Iraqi civilian casualties. Is it war against the Iraqi people?" Arab News, 8 April 2003)

9 April : Between 50 to 100 civilians were killed on Highway 8, outside Baghdad, when American troops countered an ambush by Iraqi Republican Guards on a highway with a lot of civilian traffic. "I have got to protect my soldiers," the U.S. commander justified the firing on civilian cars, "because we don't know if it's a car-load of explosives or RPGs." (Robert Fisk "We're here to fight the regime, not civilians, but I had to save my men" The Independent, 11 April 2003)

10 April : Financial Times journalist Paul Eedle, witnessed that while they were invading Baghdad, "The marines shot anything that they considered remotely a threat." He saw U.S. marines open fire on unarmed men, women and children three times in three hours. They killed five people and injured five others, including a six-year-old girl. (Paul Eedle "The marines shot anything they considered a threat" The Financial Times, 10 April 2003)

10 April : Even in territories that were already under the control of the U.S. troops, civilians were killed and maimed by indiscriminate gunfire. On April 10, for example, U.S. Marines admitted killing two children at a checkpoint near Nasiriya. ("US marines kill two children in checkpoint error" ABC News, 11 April 2003)

14 April : U.S. Marines admitted shooting dead at least seven Iraqis in Mosul. The incident happened during protests against a pro-U.S. speech by the newly installed local governor. ("US admits killing `at least seven' in Mosul" The Times, 16 April 2003)

28 April : In a similar incident on April 28 in the city of Fallujah, 13 civilians were killed and 75 injured by U.S. troops who fired on peaceful demonstrators. ("U.S. soldiers fire on Iraqi protesters; hospital chief says 13 Iraqis are dead" Associated Press, 29 April 2003)

All these killings (and thousands more) were committed under the fabricated pretext of the current administration.

Ah, yes. A "hack" who graduated first in his class at West Point and was a Rhodes Scholar, and a leader at our school. (Again with the personal attacks? Seriously? Are you 12, or are you a grownup? If you were confident in your positions, such base hyperbole would be unnecessary.)

But maybe you're right - perhaps he should have clarified to "the vast, vast, vast majority of those of us who have worn the uniform." Including you, for true intent and belief is judged by action, as opposed to anonymous web postings. If you actually agreed with Watada, you would be following him into the courtroom - and then to Kansas. Either you lack the courage to refuse to be a war criminal by further obeying orders that even indirectly support the war in Iraq, or you don't actually agree with him. Which is it?

I assume of course, that you were present for each of the listed incidents, and so know for a fact that each "atrocity" was pursuant to an order from the CinC - or at least, done pursuant to a broader policy promulgated by him. But even if those reports are as accurate and as criminal as you assume, they do not make the order to deploy illegal. You could come up with a list 100 times that long of similar incidents in WWII. That doesn't make them unoffensive to soldiers and Christians (or even us poor, undereducated, liberty-hound sailors), of course, but that doesn't make FDR a war criminal, nor does it implicate the millions who served in that war. And that's the central question you either will not or cannot understand.

Alas, your intellectual and factual grasp here is clearly below the threshhold of understanding necessary to discuss the Watada issue, as opposed to the wider issues of the war in Iraq. You continued refusal to answer squarely the issues presented (can a soldier refuse to clean the latrine in Iraq; are you personally a war criminal; what is the broader result of your worldview) leads to the inevitable conclusion that you simply are unable or unwilling to defend Watada's actions as a matter of law. As such, I cordially invite you to seek affirmation of your incorrect beliefs among people less concerned about principles like civilian control of the military, finality of Supreme Court Constitutional interpretation, adherence to facts, or the law in general.

So your point is that because some soldiers in Iraq received allegedly illegal orders, an order directing Watada to go to Iraq is illegal? That's a non-sequitur.

The bullet point examples you give don't even establish that there have been orders to kill civilians unless you're in capable of differentiating between an order to murder women and children and an order to bomb a target that results in the death of women and children.

By your logic, there is not a dime's worth of difference between F.D. Roosevelt and Adolph Hitler.

On another point, you may not agree with the political reasons for going into Iraq. But that's an entirely separate question from whether it's legal to be in Iraq. The political reasons provide Watada no grounds to disobey. The legality of our presence in Iraq may, but I haven't heard a good legal argument for why it is illegal to be there.

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